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Prenatal tests are medical investigations undertaken during pregnancy to determine whether there is a probability or possibility of the foetus being born with a certain genetic condition or structural defect, or whether the foetus is developing with a certain genetic condition or a structural defect. These tests are broadly classified into prenatal screening tests and prenatal diagnostic tests.
Prenatal screening tests are investigations aimed at detecting the presence of a foetal abnormality before any symptoms appear while prenatal diagnostic tests are solely meant to confirm or predict the presence or absence of a genetic anomaly. The other difference is that prenatal screening tests are usually non-invasive (less risk of harm to the mother and foetus) while prenatal diagnostic tests can be both invasive (greater risk to the mother and foetus) and non-invasive. Prenatal screening tests include ultrasound, cell-free foetal DNA test (cfDNA), non-invasive prenatal test, and maternal serum test while prenatal diagnostic tests include chorionic villus sampling, cordocentesis/percutaneous umbilical blood sampling and amniocentesis.
Clinical significance of prenatal tests
The clinical importance of these tests can be classified into three themes, namely, descriptive, predictive and prescriptive.
Descriptively, prenatal screening tests and prenatal diagnostic tests such as the obstetric ultrasound provide accurate information about the normal (foetal anatomy) and abnormal morphology (foetal anomaly) of the foetus. These tests involve the scanning of gravid women using ultrasound to produce a two-dimensional or three-dimensional image of the developing foetus. In addition, ultrasound can give detailed information about foetal growth, foetal number, viability, gestational age, placental location, quantification of the amniotic fluid and the gender of the foetus. Ultrasound as a prenatal screening test carries a lower risk of injury to both the mother and the foetus. Foetal anomalies diagnosed by ultrasound include but are not limited to trisomy syndromes, foetal hydrops, and other structural/skeletal anomalies. Being a screening test, ultrasound often requires confirmatory diagnostic prenatal tests to be undertaken.
Predictively, prenatal tests can provide information on the likelihood of the foetus having or developing a certain genetic disease later in life outside the womb. These tests have been shown to predict with high probability whether a developing foetus will be born with a chromosomal abnormality. Invasive tests involve sampling of maternal blood, placenta, foetal tissue or even amniotic fluid. These tests include invasive chorionic villus sampling and amniocentesis. Recent non-invasive tests such as the non-invasive prenatal test (NIPT) carry a lesser risk to the developing foetus since the blood sample for diagnostic information is taken from the mother. Scientists then study the circulating foetal cells in maternal blood, or the circulating free foetal nucleic acids (foetal DNA and RNA), also called cell-free DNA. NIPT tests can be used to screen for chromosomal aneuploidies (extra copy or missing copy of a chromosome) such as Down’s syndrome (trisomy 13), Edward’s syndrome (trisomy 18), Patau’s syndrome (trisomy 21), or monosomy, cystic fibrosis, spinal muscular atrophy, muscular dystrophies as well as the sex of the foetus. However, there have been cases of false positives and false negatives associated with these tests as predictive modalities.
Prescriptively, the diagnostic information from both prenatal diagnostic tests and screening tests is used by physicians or parents to determine whether to terminate the pregnancy in utero. This is very vital, especially for foetuses with major genetic disorders and congenital abnormalities that have a poor prognosis and whose only “treatment” is abortion. In some selected cases, in utero therapeutic interventions can be useful in rectifying some of the problems. The diagnostic information obtained from prenatal tests can also be used for planning for the safe delivery of the foetus, thereby reducing prenatal mortality and morbidity and the associated maternal mortality.
The nexus between prenatal testing and neo-eugenics
The word “eugenics” is derived from the Greek word eugenes meaning “good in birth” or “good in stock”. Francis Galton was the first to use the word in his seminal book titled Inquiries Into Human Fertility and Its Development. The goal of the eugenics movement was to create a society of “able” human beings as opposed to those people the society viewed as feeble. By using eugenics, natural selection was replaced by a new kind of artificial selection determined by man. The eugenics movement traces its origins to the 19th century and it was considered a form of scientific racism because it was characterised by coercion, non-benevolence, maleficence and lack of self-determination. This was more pronounced during the Nazi regime’s non-ethical research on human beings.
In the 21st century, there has appeared a different type of eugenics referred to as neo-eugenics or liberal eugenics. Unlike the negative connotation attaching to the early eugenics movement, the neo-eugenic movement is thinly veiled as being less non-benevolent, non-coercive, and non-maleficent, with emphasis being placed on self-determination. However, the goal of both movements is to create a society of “able” men and women with the desired characteristics through the elimination of those deemed to have “lesser features” (negative eugenics) and the encouragement of the reproduction of beings with “superior” features (positive eugenics).
Positive and negative neo-eugenics are being enabled by the emergence of prenatal screening tests and diagnostic tests. Due to the increasing accuracy of prenatal tests, offspring selection through selective trait abortion and genetic selective abortion are both now accessible and available. If the screening or diagnostic tests show a high likelihood of a foetus being born with a certain genetic condition or congenital anomaly and an ensuing diagnostic test makes a confirmatory finding, then the undesired foetus can be eliminated through selective abortion. Increasingly, trait selection through prenatal tests such as sex determination has brought about a rise in cases of female foeticide due to the parents preferring the male foetus over the female foetus.
Personhood of the foetus and foetal dignity
Article 26 of the Kenyan constitution states that every person has the right to life, that the life of a person begins at conception, that a person shall not be deprived of life intentionally, except to the extent authorised by the constitution or other written law, and that abortion is not permitted unless, in the opinion of a trained health professional, there is a need for emergency treatment, or the life or health of the mother is in danger, or if permitted by any other written law.
Although it is self-explanatory, in a deeper sense, the right to life of the foetus seems inviolable in all the developmental stages of pregnancy under the Kenyan constitution. The constitution recognises the legal and human personhood of the foetus since life begins at conception. However, this right is not absolute since the foetus can be deprived of life according to Article 26 (4) of the constitution. Article 28 of the Kenyan constitution also guarantees that every person has inherent dignity and the right to have that dignity respected and protected. Therefore, the foetus being a person, its inherent foetal dignity must be respected and protected.
However, neo-eugenic trait selection abortion or genetic selective abortion enabled through prenatal tests are both deemed illegal under the Kenyan constitution. Even in cases where the foetus has chromosomal abnormalities such as Down syndrome, structural abnormalities such as absent limbs or selective traits such race, sex, sickle cell disease, if the life or health of the mother is not in danger or there is no need for emergency treatment, then it becomes an illicit act to procure an abortion.
Ethically, it can be argued that foetal dignity can also take precedence especially if the quality of life of the foetus post-delivery is to be considered. Foetuses diagnosed with chromosomal abnormalities or other undesired structural abnormalities may have a short lifespan and a life that lacks dignity. Even if Article 28 of the constitution says that every person has inherent dignity and the right to have their dignity respected and protected, it is not a guarantee that children born with such abnormalities will not face discrimination in society. They may also burden the parents both financially and psychologically. In such cases, abortion may serve as the only “treatment” or as a eugenic tool to ensure that “able” foetuses are born and the dignity of life is preserved.
Foetal rights vs maternal rights
It is biologically improbable for the foetus to exist outside the protective womb of the mother. Therefore, the relationship between the mother and the foetus in normal pregnancy is said to be a symbiotic relationship. In an abnormal pregnancy, this relationship can be described as parasitic, especially if the developing foetus is a threat to the life of the mother. In both situations, the foetal rights and maternal rights are like weights on a lever and in some circumstances, there can be a conflict between the foetal and maternal rights. A balancing act is required to solve such conflicts by placing greater emphasis on one right and less emphasis on the other.
In the case where the life of the mother is in danger or she requires emergency treatment, the maternal rights override the foetal rights. Therefore, it becomes a legal act to deprive the foetus of life under Kenyan law. On the other hand, if the prenatal tests show that there is a high probability of a foetus being born with a certain genetic condition structural abnormality or other undesired trait, the maternal rights will often not override the foetal rights. Therefore, it becomes an illegal act to terminate the foetus.
It is worth noting that the self-determination or autonomy of the foetus is limited and is dependent on the parents. Therefore, it can be argued – and rightly so – that the mother has reproductive autonomy or right to self-determination over the foetus. The parents should be allowed to make decisions based on the best interests of the child. If a foetus has inherent abnormalities in utero, then the parents should be allowed to decide whether to use genetic selection abortion as a eugenic tool. Therefore, maternal rights should override foetal rights.
Beneficence vs maleficence
Beneficence is an ethical principle that requires medical practitioners to “do good” and act in the best interests of the patient. In the case of a gravid woman, there are two patients – the mother and the unborn child. Therefore, medical practitioners should act in the best interests of either the mother, or the child, or both. The maternal rights and foetal rights are at play concurrently and care should be taken to ensure no harm befalls the mother or the child.
Prenatal testing can indicate a high likelihood of a foetus developing a genetic anomaly or can demonstrate that a foetus has a morphological anomaly which, however, does not put the life of the mother or that of the foetus at risk. Here, the principle of beneficence takes precedence. In cases of trait selection where prenatal tests can predict the gender or the race of the foetus, again, the principle of beneficence takes precedence. In both cases, the parents can argue that they have a right of self-determination or autonomy to terminate the pregnancy due to the undesired foetal traits. This may be in conflict with the Hippocratic oath and the principle of beneficence that guides medical practitioners.
In instances where maternal rights and foetal rights conflict with each other, the principle of maleficence (do harm) can take precedence. If the life of the mother is at risk as a result of the pregnancy, then abortion is the preferred “treatment” of choice. In cases where the foetus is diagnosed with chromosomal abnormalities or structural defects that cannot sustain life outside the womb and no other treatment can be proffered, then selective abortion (do harm) is the only “treatment” that can be considered. Abortion itself is a maleficent modality which does harm by depriving the foetus of life either for eugenic purposes or for non-eugenic purposes.
In conclusion, under the Kenyan constitution, the foetus inherits protection of right to life after conception. Therefore, foetal right to life overrides the mother’s right of autonomy and of self-determination. However, this right of life is not absolute; Article 26 (4) of the Constitution spells out the conditions required to procure an abortion. In such cases, the maternal right to life takes precedence over the foetal right life. The advent of prenatal tests has brought forth the issues of genetic selective abortion, trait selective abortion and maternal rights or reproductive rights. Justice Kennedy once made this observation about the framers of the United States Constitution: “They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.”